1. In this petition under Article 226 of the Constitution, the petitioner who is a detenu under the provisions of Section 3(1) of the Gujarat Prevention of Anti-Social Activities Act, 1985 ('the RASA Act' for short), has brought in challenge his order of preventive detention on diverse grounds. The order of detention is dated 31-7-1986. It is at annexure 'A' to the petition. It recites that the detaining authority viz. District Magistrate, Bharuch is satisfied with respect to person known as Babubhai Gulambhai Goas (the petitioner herein) that with a view no preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make an order directing that the said detenu be detained and, therefore, in exercise of the powers conferred by Sub-section (1) of Section 3 of the PAS A Act, the District Magistrate has directed detention of the petitioner. The grounds of detention supporting the detention order are of even date and they are found at pages 13 to 16 of the petition. The order of detention has been approved by the State Government and also confirmed by the State Government after receipt of Advisory Board's opinion.

2. In response to the Rule issued in this petition, the detaining authority Mr. S.R. Rao, District Magistrate, Bharuch has filed his affidavit-in-reply. Mr. Kapadia, for the petitioner raised five contentions in support of the petition. It is not necessary to reproduce all of them at this stage for the simple reason that the last contention which Mr. Kapadia canvassed, in our view, goes to the root of the matter and entitles the petitioner to succeed. We have, therefore, not mentioned and dealt with other contentions canvassed by Mr. Kapadia in support of the petition.

3. The last contention canvassed by Mr. Kapadia is to the effect that the petitioner is an illiterate person and he has not been afforded any opportunity of making effective representation as early as possible to the State Government and also to the Advisory Board. In the grounds of detention, he has not been informed the fact that he can make representation either to the State Government or to the Advisory Board and hence, he has not been told to make any representation and consequently, continued detention of the detenu is illegal.

4. This ground is found as ground No. 14 at page 8 of the petition. The detaining authority has tried to meet this point in para 18 of his affidavit-in-reply at page 51. It has been stated that it is not correct to say that the petitioner has not been afforded any opportunity to make representation to the State Government and also to the Advisory Board against the order of detention. In fact, in the grounds of detention themselves it has been mentioned that if the detenu wants to make a representation against the order of detention to the State Government, then the same should be addressed to the Deputy Secretary, Home Department, State of Gujarat, Gandhi nagar and the same should be sent through the Superintendent of the Sabarmati Central Prison. Similarly, it has been mentioned in the grounds of detention that the petitioner has a right to make representation before the Advisory Board. That the meeting of the Advisory Board had taken place on 12-9-1986. The detaining authority had remained present because he was summoned to remain present before the Board as he had passed the order of detention. The detenu was also presented, he had made representation before the Board also and therefore, in these circumstances, the allegation that the petitioner was not afforded an opportunity of making representation as early as possible to the State Government and also to the Advisory Board is denied.

5. Now, if we turn to the grounds of detention, we find in the penultimate para and also in the last para the following recitals which, when translated into English, read as under:

If you want to make any representation against the order of detention passed against you, you please note that you have an opportunity as per law to represent to the Deputy Secretary, Home Department, Gujarat Government, Sachivalaya, Gandhinagar through the Jail Superintendent, Sabarmatj Central Prison.

If you desire to be personally heard before the Advisory Board, you may state to that effect in your representation.

A close look at the aforesaid recitals in the grounds of detention leaves no room for doubt that the petitioner has been informed in clearest terms that he has got a legal right to represent against the order of detention to the Deputy Secretary, Gujarat Government, Home Department. But he has not been told that he has such right of representation against the detention order also before the Advisory Board. The last para of the grounds only informs the petitioner that if he wants to be personally heard before the Advisory Board, he may state to that effect in his representation, meaning thereby, in his representation about which he is informed in the penultimate para of the grounds. In other words, detenu has been told that if he desires to be personally heard before the Advisory Board, he may mention to that effect in his representation which he may move to the Deputy Secretary, Home Department, Gujarat Government, because this is the only representation contemplated in both the aforesaid paras of the grounds. Placing strong reliance on the aforesaid recitals in the grounds of detention, Mr. Kapadia for the petitioner vehemently contended that the detaining authority has failed to inform the petitioner about his constitutional and legal right to make representation against the order of detention to the Advisory Board and that merely because the petitioner was told that he may appear personally before the Advisory Board is no substitute for the legal requirement that the petitioner must be informed that he has a right of representation against the detention order to the Advisory Board and as that has not been done, his right of representation against the order of detention has been violated. It is not in dispute between the parties that the petitioner has not made any written representation before the Advisory Board. It is true that he did appear before the Advisory Board on the date of hearing and he was personally heard. But the fact remains that earlier, he has never made any written representation before the Advisory Board nor was he told about his right to make such a representation against the detention order. Mr. Kapadia in this connection invited our attention to a Supreme Court decision in the case of Wasi Uddin Ahmed v. District Magistrate, Aligarh . The following observations of the Supreme Court speaking through Sen, J. were strongly pressed in service:

It is expected of a detaining authority while serving an order of detention, as a rule, to mention in the grounds of detention, that the detenu has a right to make a representation against the order of detention and also a right to be heard by the Advisory Board. The words "and shall afford" in Article 22(5) have a positive content in matters of personal liberty. The law insists upon the literal performance of a procedural requirement. The need for observance of procedural safeguards, particularly in cases of deprivation of life and liberty is of prime importance to the body politic. It is, therefore, imperative that the detaining authority must "apprise" a detenu of his constitutional right under Article 22(5) to make a representation against the order of detention and of his right to be heard before the Advisory Board.

6. Mr. Kapadia, further stated that in the facts of the said case, it was found by the Supreme Court that as the detenu was an enlightened person and had been in active politics and was, therefore, fully cognizant of his right to make a representation under Article 22(5) of the Constitution and under Section 8 of the National Security Act and he, in fact, appeared before the Advisory Board and filed a representation against the order of detention and was also personally heard by the Advisory Board, the failure to comply with the requirement of informing the detenu about his right to make a representation did not have the effect of vitiating the order of detention of the detenu nor did it render the continued detention of the detenu illegal. However, in the present case, the petitioner is an illiterate detenu. He is not conversant with the constitutional requirements of preventive detention. He has not been told that he has a right of representation to the Advisory Board. In fact, he has not been told to make any representation to the Advisory Board and merely because he was personally heard before the Advisory Board would not absolve the respondents of their constitutional obligation of informing the detenu of his right of representation to the Advisory Board as laid down by the Supreme Court in the aforesaid decision.

6.1. In this connection, Mr. Kapadia also invited our attention to the Division Bench judgment of this Court in the case of Mohmed Kasam Imammuddin Shaikh v. State of Gujarat and Anr. 1986 GLH (Unreported Judgment) 4. In that case, the Division Bench consisting of A.M. Ahmadi and D.H. Shukla, JJ. while deciding Special Criminal Application Nos. 559 and 560 of 1985 on 5-12-1985, dealt with almost a parallel case. In the facts of the case before the Division Beach, the detenus who were illiterate persons were not informed in the grounds of detention that they had a right of representation against the orders of detention to the Advisory Board. That the grounds of detention merely stated that he had right to make representation to the State Government. The grounds failed to mention that the detenu had the right to make a representation against the order of detention before the Advisory Board. That even though the detenu had remained present before the Advisory Board, it was held in the light of the aforesaid facts that the detenu's right of representation was violated. It was also observed that the detenus before the Division Bench were not even informed at the time of service of the detention order that they had a right to make a representation against the order of detention to the Advisory Board as well as claim personal hearing. Division Bench speaking through Ahmadi, J. also distinguished the facts of the Supreme Court case in Wasi Uddin (supra) by observing that the Supreme Court was dealing with a detenu who was a politician and fully conversant with his right under Article 22(5). That he in fact filed a representation before the Advisory Board and was also personally heard by the Board, while the detenus with whom the Division Bench was dealing were illiterate persons. They cannot be expected to know their right under Article 22(5) of the Constitution. That cannot be compared with the detenu Wasi Uddin who was educated and enlightened politician. It was, therefore, held on the principle enunciated by the Supreme Court in the case of Wasi Udclin (supra) that detenus before the Division Bench were held to have been denied effective right of representation against the detention order as guaranteed under Article 22(5) of the Constitution. On that ground, the detention orders were quashed. The facts of the present case are almost parallel. Here also, the detenu is illiterate. He is not told that he had a right of making representation against the detention order before the Advisory Board. Even though he was personally heard before the Advisory Board. The fact remains that he did not file any representation against the detention order before the Advisory Board. All that he was told was that he had right of representation to the State Government. Thus, the facts of the present case run parallel to the facts in Mohmed Kasam's case before the Division Bench. Therefore, the ratio of the said decision of the Division Bench squarely applies to the facts of the present case, and on parity of reasoning, we must hold that the detention order in the present case also becomes void and continued detention would become illegal on account of infraction of Article 22(5). Mr. Vaidya for the respondents made a valient attempt to salvage the situation by submitting that before the Division Bench in the above case, there was no mention whatsoever about the Advisory Board; while, here in the grounds of detention, it has been clearly brought to the notice of the detenu that if he wants to remain personally present before the Advisory Board, he can say so in his representation. That meant that the detenu was informed that he can represent before the Advisory Board and in any case, if he was informed that he can remain present before the Advisory Board and make his representation, it would include personal representation - both oral and written and therefore, to that extent, the facts of the present case would be different from the facts of the case before the Division Bench. It is difficult to accept this contention for the simple reason that even though in the present case, the last para of the grounds does indicate that if the petitioner desires to remain personally present and submit representation before the Advisory Board, he may so state in his representation, it does not mean that the detenu is informed about his right of making representation against the detention order before the Advisory Board. As we have seen earlier, the Supreme Court while interpreting Article 22(5) has clearly spelt out two-fold constitutional obligations on the part of the detaining authority viz. (i) informing the deteau that he has right of representation against the detention order before the Advisory Board and (ii) right to be heard before the Advisory. Board. Out of these two-fold obligations, second part is complied with in the facts of the present case, insofar as the petitioner has been told that if he desires to be personally heard before the Advisory Board, he may do so. But so far as the first part is concerned, there is no mention whatsoever in the grounds of detention and the only representation about which he is informed is representation to the Deputy Secretary, Home Department, Government of Gujarat and not before the Advisory Board. Consequently, the effort made by Mr. Vaidya for the respondents to distinguish the facts of the present case with a view to seeing that ratio of the decision of the Division Bench in the case of Mohmed Kasam does not get attracted, remained abortive.

7. Mr. Vaidya lastly contended that in Wasi Uddin's case (supra), the Supreme Court has not considered a salient aspect of the matter viz. that if the order of detention passed by the detaining authority is sent for approval of the State Government within requisite time, the State Government may approve or may not approve the same. If the State Government approves that order, then it is the obligation of the State Government to inform the detenu about his right of representation against the detention order to the Advisory Board. But it may be that the order may not be approved at all. In that view of the matter, there will be no occasion to make any representation to the Advisory Board. In our view, this submission of the learned Counsel for the respondents cannot be entertained in view of the clear-cut decision of the Supreme Court. The obligation of the detaining authority to inform the detenu about his constitutional and legal right is simultaneous with the service of the detention order supported by the grounds of detention. That obligation cannot be deferred till uncertain event happens viz. the order of detention is approved by the Slate Government or not. Therefore, the constitutional obligation which springs simultaneously with the service of detention order and the grounds of detention cannot be in any way diluted and postponed as submitted by the learned Advocate for the respondents. In any case, it is not open to us to go into the question as to whether this aspect of the matter if brought to the notice of the Supreme Court would have resulted into a different decision. So far as we are concerned, the express ratio of the Supreme Court decision has got to be followed and applied to the facts of the present case.

8. As a result of the aforesaid discussion, the impugned order of detention at Annexure 'A' at page 10 of the petition is quashed and set aside. Rule is made absolute. Respondents are directed to set the petitioner at liberty if not required to be detained in connection with any other legally operative order.

9. After the judgment in this matter was dictated in open Court on 30-3-1987 and after it was transcribed and was signed by one of us (S.B. Majmudar, J.) Mr. Vdiaya, learned P.P. for the respondents requested us to defer completion of signing of the judgment on the ground that the view which we have taken in this matter, in his submission, runs counter to the Supreme Court decision rendered in the case of Sk. Hasan Ali v. State Of West Bengal ., we posted this matter for rehearing on this limited issue. Now, to recapitulate, the view which we have taken in this judgment following the two decisions - one of the Supreme Court in and another of the Division Bench of this Court in the case of Mohmed Kasam, is to the effect that it is an obligation on the part of the appropriate authority passing the order of detention to inform the detenu of his constitutional right of making a representation to the Advisory Board, amongst others, and if that is not done and if on the facts, it is found that the concerned detenu has not been able to effectively represent before the Advisory Board and has not been able to make his representation to the Advisory Board, his constitutional right to that effect guaranteed under Article 22(5) of the Constitution can be said to have been infracted rendering his continued detention void. Mr. Vaidya for the respondents placing strong reliance on the decision of the three-member Bench of the Supreme Court in Hasan Ali (supra) submitted that what is held in para 5 of the said judgment runs just counter to what we have held in this judgment. It is, therefore, necessary to reproduce the entire para 5 of the report with a view to highlighting the contention of the learned P.P. for the respondents:

5. The first contention which has been raised by Mr. Prashar is that the petitioner was not produced before the Advisory Board and, as such, was deprived of an opportunity of making oral submissions to the Board. In this respect, we find that in the ground of detention which was served upon the petitioner, along with the order of detention, he was informed that he could make a representation to the State Government against the detention order and that his case would be placed before the Advisory Board within 30 days from the date of detention. The petitioner was also told that in case he desired to be heard in person by the Advisory Board, he should intimate such desire in his representation to the State Government. The petitioner in pursuance of that submitted a fairly long representation. It was, however, nowhere stated by the petitioner that he desired to be heard in person by the Advisory Board. It would, thus, follow that in spite of being told that he could have a personal hearing before the Advisory Board, the petitioner failed to intimate that he desired such a hearing. No grievance can consequently be made by the petitioner on the score that he was not afforded a personal hearing by the Advisory Board.

10. Now, a mere look at the aforesaid decision of the Supreme Court contained in para 5 at once shows that all that the three-member Bench of the Supreme Court in that case speaking for the Supreme Court through Khanna, J. held on the facts of that case was that the detenu was not deprived of the opportunity of making oral submissions before the Advisory Board. In fact, the only contention canvassed in this connection before the Supreme Court in the case of Hasan Ali (supra) was that the detenu was denied the opportunity of making oral submissions before the Advisory Board. On the facts of that case, it was found that it was not so. In order to come to that conclusion, the Supreme Court relied upon diverse circumstances emerging from the record of that case. The first circumstance was that in the ground of detention served on the detenu, he was informed that he could make a representation to the State Government against the detention order and that his case would be placed before the Advisory Board within 30 days from the date of detention. The second circumstance was that the petitioner was told that in case he desired to be heard in person by the Advisory Board, he should intimate such desire in his representation to the State Government. The third circumstance pressed in service by the Supreme Court in the said decision for negativing the contention of the detenu was to the effect that the detenu in fact, pursuant to what he was told in the ground of detention, submitted a fairly long representation and in that representation, he nowhere stated that he desired to be heard in person by the Advisory Board. In these circumstances, the Supreme Court ruled in the peculiar facts of that case that inspite of being told that he could have a personal hearing before the Advisory Board, the petitioner failed to intimate that he desired such a hearing. In this view of the matter, no grievance could consequently be made by the petitioner on the score that he was not afforded a personal hearing by the Advisory Board. Therefore, all that was argued before the Supreme Court in this connection in Hasan Ali's case (supra) was as to whether on the facts of that case, the detenu was denied an opportunity of personal hearing before the Advisory Board and it is that contention which was negatived on diverse grounds enumerated above. Consequently, that decision is not an authority laying down legal requirements of the obligation of the authority making an order of detention in communicating to the detenu his diverse rights flowing from Article 22(5) of the Constitution and the effect on his continued detention on account of any infraction of the said obligation, of course, in the settings of the facts of each case. As such a contention was never canvassed before the Supreme Court in Hasan Ali's case (supra), it is obvious that the Supreme Court had no occasion to consider that submission and authoritatively pronounce upon the same. Consequently, there is no decision of the Supreme Court in Hasan Ali's case (supra) laying down the parameters of the legal obligations of the authority making the order of detention in connection with information to be conveyed to the detenu alongwith grounds of detention about his diverse rights of representation as flowing from Article 22(5) of the Constitution. That question, on the other hand, came to be squarely examined by a two-member Bench of the Supreme Court in Wasi Uddin's case (supra). That decision rendered by two-member Bench of the Supreme Court is a direct authority on the point. When the Supreme Court has squarely answered that question in that decision, the ratio of that decision must be held to be binding on this Court and cannot be said to be in any way in conflict with the decision of the three-member Bench of the Supreme Court in Hasan Ali's case (supra). As there is no conflict, there is no question of following three-member Bench decision in preference to the decision rendered by two-member Bench. Consequently, it cannot be held that there was any - patent error of law committed by us in deciding this matter on 30-3-1987 or that our decision is required to be reviewed on the. ground that it is rendered per incuriam as being delivered without considering a binding decision of three-member Bench of the Supreme Court taking a contrary view. Hence, the request of the learned Counsel for the respondents to review our decision stands rejected.